Matthew Purdon Henderson V. Foxworth Investments Limited+3052775 Nova Scotia Limited
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2011] CSOH 104 |
| Docket Number | CA166/09 |
| Date | 17 June 2011 |
| Court | Court of Session |
| Published date | 17 June 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 104 | |
| CA166/09 | OPINION OF LORD GLENNIE in the cause MATTHEW PURDON HENDERSON Pursuer; against (FIRST) FOXWORTH INVESTMENTS LIMITED and (SECOND) 3052775 NOVA SCOTIA LTD Defenders: ________________ |
Pursuer: Moynihan QC; Balfour + Manson LLP
Defender: Sandison QC; Halliday Campbell WS
17 June 2011
[1] On 12 April 2011 I sustained the third and fourth pleas-in-law for the defenders and assoilzied the defenders from the conclusions of the summons: see [2011] CSOH 66. I reserved all questions of expenses.
[2] The defenders now move for the expenses of the action and for an additional fee under heads (a), (b), (c), (e) and (f) of Rule 42.14(3). Both aspects of the motion are opposed by the pursuer.
[3] Although logically the question of an additional fee falls to be considered after determination of the incidence of expenses, it may be convenient if I express my view on this aspect of the motion at this stage on the assumption that the motion for expenses is granted. I am not persuaded that it would be appropriate to allow an additional fee in the present case. I accept, in terms of head (a), that there were many uncertainties about the facts relevant to the questions at issue in the action, but uncertainty is not the same thing as complexity. The uncertainties arose from the absence of documentary and other material, and I am not persuaded that the efforts of the solicitors to gather together further material, considerable though they no doubt were, justifies the award of an additional fee. Nor am I persuaded, under reference to head (b), that there was any extraordinary degree of skill, time and labour involved on the part of the solicitors for the defenders. In terms of head (c), it is true that there were a number of lever arch files of documents, but many of these were repetitious (their inclusion in the bundles prepared for the proof being because of arguments about the admissibility of copies of certain documents); and in any event the fact that there are several files of documents is by no means unusual in a commercial action. Mr Sandison, for the defenders, argued that some considerable time, skill and effort was taken up in the need for the solicitors for the defenders to consider the relevance of documents produced by the pursuers, but I am not persuaded that that adds anything of substance to the argument. So far as concerns head (e), I need only note, as has been noted on many occasions, that almost every case is important to the client. What is necessary is to show that this was a case of extraordinary importance, and I am not persuaded that this is so. Finally, under reference to head (f), I am not persuaded that the amount or value involved in the cause was such as to justify the award of an additional fee. As noted in para.[93] of my Opinion, there is some uncertainty as to the amount for which the standard security was granted. It may have been £1.85 million or it may have been only £300,000. That has not been determined. Looking at the matter in the round, and having regard to all the facts and...
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Henderson v Foxworth Investments Ltd
...Division did not require to deal with a cross-appeal by Foxworth and NSL against the Lord Ordinary's decision in relation to expenses ( [2011] CSOH 104). 8 Foxworth and NSL now appeal to this court against the decision of the Extra Division, and also against the Lord Ordinary's decision in ......